WPIC 49A.09 Sexually Explicit Conduct—Definition

Use this instruction with WPIC 49A.01 (Sexual Exploitation of a Minor—Definition) and WPIC 49A.02 (Sexual Exploitation of a Minor—Elements).

This instruction should be used only for crimes that occurred on or after June 10, 2010, the effective date of the amendment to the statutory definition related to sadomasochistic abuse and depictions of minors.

Use the bracketed material as applicable. For directions on using bracketed phrases, see WPIC 4.20 (Introduction).

If applicable, use WPIC 47.09 (Minor—Definition) and WPIC 45.01 (Sexual Intercourse—Definition).

RCW 9.68A.011(4)(a)–(g).

Because the instruction applies to conduct that took place on or after June 10, 2010, a special verdict form may be needed if the charged conduct took place both before and after that date. Instructions should include the definition of the offense applicable at the time the earlier conduct occurred, as well as the definition in the current instruction for conduct occurring on or after the effective date of the amendments to the statute.

The statute's definition of “sexually explicit conduct” applies to offenses set forth in RCW Chapter 9.68A. First degree offenses involve depictions of sexually explicit conduct as defined in RCW 9.68A.011(4)(a) through (e), and second degree offenses involve depictions of sexually explicit conduct as defined in subsections (f) and (g). The WPI Committee incorporated the applicable subsections of the definition of sexually explicit conduct into the instructions defining the offenses of possession, dealing, and possession with intent to deal in depictions. See WPIC 49A.03.01 (Possession of Depictions of a Minor Engaged in Sexually Explicit Conduct—First Degree—Definition) through WPIC 49A.08.02 (Dealing in Depictions of a Minor Engaged in Sexually Explicit Conduct—Possession with Intent to Disseminate—Second Degree—Elements). Those definitional instructions should be used instead of this instruction for the depictions offenses.

The term “sexually explicit conduct” should not be confused with the term “sexually explicit act,” which is separately defined in RCW 9A.40.100(6)(b) for trafficking offenses, and in RCW 9.68A.101(3)(d) for promoting commercial sexual abuse of a minor.

This definitional statute is not unconstitutionally overbroad as it does not include sexually explicit conduct performed by a “simulated” minor. State v. Stellman, 106 Wn.App. 283, 22 P.3d 1287 (2001) (charge of dealing in and possession of depictions of a minor engaged in sexually explicit conduct); State v. D.H., 102 Wn.App. 620, 9 P.3d 253 (2000) (charge of sexual exploitation of a minor). See Ashcroft v. Free Speech Coalition, 535 U.S. 234, 122 S.Ct. 1389, 152 L.Ed.2d 403 (2002) (federal statute violated First Amendment because simulated minors could have been included in prohibited depictions). The statute also is not overbroad merely because it does not contain the words “lewd” or “lascivious.” State v. Farmer, 116 Wn.2d 414, 805 P.2d 200 (1991).

Amendment of the statute in 2010 made clear that depictions of a minor's genitals can be “sexually explicit conduct” regardless of whether the minor knows that he or she is engaging in the sexually explicit conduct.